Islamabad:
The constitutional bench (CB) of the Supreme Court questioned the state of military legal proceedings against the rioters of May 9 if their affairs are transferred to the anti -terrorist courts (ATC).
A CB of seven members resumed hearing the intra-cost calls of the government against the previous ordinance of the SC announcing the trial of civilians before the military courts.
Representing the petitioners of the civil society, the lawyer Faisal Siddiqi argued that if the court accepted its position, the 1952 law of the Pakistani army would remain intact, but the trials of May 9 accused would be canceled. He explained that the indiscured cases would go to ATC, while cases where sentences had already been executed would be considered as “past and closed transactions”
Judge Muhammad Ali Mazhar asked if the ATCs would carry out new trials or count on military evidence. The CB chief judge, Aminuddin Khan, asked if the declaration of the Verdicts of the Military Tribunal “passed and closed” would validate the trials.
In response, Faisal Siddiqui said that the military trial had been challenged before the Supreme Court due to the application of article 245 of the Constitution.
Article 245 describes the role of the armed forces in the defense of the country and assistance to the civil authorities. Judge Amicin Khan stressed that article 245 was not in force on May 9, 2023. It was invoked when the petitions were deposited.
Earlier, Faisal Siddiqui said the question was not how the 105 accused people had been selected for the military trial, but rather if the law authorized it.
Judge Amicin Khan pointed out that the question of the accused’s presentation was a record question. He asked if Siddiqi’s customer challenged article 94 of Pakistan Army Act, 1952.
The lawyer replied that at the time of the accused’s delivery, their crimes had not been determined. “We have also challenged unlimited discretionary powers under article 94 of the law,” he added.
Article 94 of the 1952 Pakistani army law stipulates that when a criminal court and a martial court have jurisdiction in matters of a civil offense, it will be at the discretion of the prescribed officer to decide before which court the procedure is instituted.
“If this officer decides that they will be instituted before a martial court, [it shall be in the discretion of the prescribed officer] To order that the accused is detained in police custody, “he said.
The lawyer argued that the officer who had decided to transfer the affairs against the accused before the military courts had unlimited authority, while even the powers of the Prime Minister are not unlimited. “The authority concerning the transfer of the accused should be structured,” he said.
Judge Hassan Rizvi asked if the police investigation was slower than that of the military and if important evidence was available at the time of the transfer.
Faisal Siddiqui replied that the availability of material evidence was not the problem. According to him, the root of the problem was the unlimited power to transfer accused people. The commander requests the transfer under article 94, he added.
Justice Jamal Khan Mandokhail asked whether the ATC had the power to reject the transfer request made by the commanders. The lawyer said the ATC had the power to reject such a request.
Judge Amicin Khan pointed out that this defense could have been adopted by the accused in ATC or during an appeal. Judge Muhammad Ali Mazhar stressed that ATC had not even issued opinions to the accused and had decided on the case only on the basis of the commander’s request.
Judge Mandokhail said that article 94 applies to those who fall under the jurisdiction of the 1952 Pakistani army law. Once the ATC has made its decision, the accused became subject to the law because the ATC had the power to reject the commander’s request, he added.
Siddiqui argued that the court’s decision should have been made before putting the accused. If no decision for a martial court had been made, how could the accused transfer be justified, he asked.
Judge Hassan Rizvi asked if the commander’s request had provided reasons for the transfer. The lawyer replied that no reason was mentioned in the request.
Judge Naeem Akhtar Afghan, however, did not agree with the complaint indicating that the request included reasons, specifying that the accused had been charged under the official 1923 secrets.
Judge Mandokhail observed that the procedure for filing a complaint under the official law on the secrets of 1923 was clearly described in the Code of Criminal Procedure (CRPC).
“Such a request should be subject to a magistrate, who would record statements and decide whether an investigation was justified,” he added.
Faisal Siddiqui argued that such a request could also be filed in the form of a FIR. He said it was established that only the federal government could file a complaint under the official secret law, and that a private individual could not do so.
“Complaints under the official secret law could also be filed under army rules,” he said.
Judge Mandokhail noted that by virtue of the army rules, an investigation must take place first, but even for an investigation to begin, there must be an official complaint.
He also asked if the discretion of the executive was still after article 175. “Article 175 completely eliminates the question of discretion,” he said.
Article 175 of the Constitution deals with the separation of powers between the judiciary and the executive. He stresses that the judiciary must operate independently and not be influenced by the executive power. The CB will resume hearing the business today.
